Relationships / Family

Guardianship

People are often aware of the term the 'care of children', but are unaware of the term 'guardianship' and what it entails.

A guardian of a child is someone the law has given the right to make decisions about important matters affecting the children under the Care of Children Act 2004 ("Act").  These are –

  • where the child lives;
  • what school the child attends;
  • medical treatment;
  • what the child's culture/religion will be; and
  • any change to the child's name.

The mother and father, if they are living together during pregnancy and at the birth, are the joint guardians of the child.

A step-parent needs to be appointed a joint guardian by way of an application to the Court if that step-parent wishes to have guardianship rights. A caregiver is also not automatically a guardian but could be appointed if an application is made to the Court.

Where one parent takes it upon themselves to make important welfare decisions for a child, such as where the child should live or go to school, they are in breach of the other parent's guardianship rights. All guardianship decisions are required to be made jointly by consulting, where practicable, with other guardians.

Guardianship is not custody or what is now called day to day care.  Parents, guardians a partner of a parent of the child, a close relative or any other person with permission from the Court may apply for a parenting order which grants that person the right to care for a child at certain times of the week.  A parenting order may also specify the nature of the contact with the children (e.g. face to face, Skype) or indirectly (e.g. email), the family of such contact and any other arrangements which are necessary.

An important distinction between a guardian and a person who has day to day care is that a guardian does not automatically have the care of the child on a daily basis. If a guardian does not have day to day care of a child, that person has the right to apply for day to day care.

A guardian can appoint someone to take over their role upon their death. This appointment is known as a 'testamentary guardian'.

The testamentary guardian does not automatically have day to day care of a child, but a surviving guardian/parent may and that parent/guardian can challenge the appointment of the testamentary guardian through the Family Court for day to day care if they have concerns about that person's appointment for instance.

Guardianship rights conclude when the child is 18 years of age.

If you require any information about Brookfields' trust administration services please contact us.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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